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Mohsin & 5 Others vs State Of U.P. & Another on 14 September, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

?A.F.R.

Court No. – 48

Case :- APPLICATION U/S 482 No. – 19361 of 2017

Applicant :- Mohsin 5 Others

Opposite Party :- State Of U.P. Another

Counsel for Applicant :- Hemendra Pratap Singh

Counsel for Opposite Party :- G.A.

Hon’ble Karuna Nand Bajpayee,J.

This application u/s 482 of Cr.P.C. has been preferred on behalf of applicants seeking the quashing of charge sheet dated 23.02.2017 as well as entire criminal proceeding in Criminal Case No.2386/9/2017 (State vs. Mohsin and others) arising out of Case Crime no.396 of 2016, u/s 498A I.P.C. and Section 3/4 of Dowry Prohibition Act, P.S.-Khatauli, District-Muzaffar Nagar.

List has been revised. Learned counsel for applicants and learned A.G.A. are present. None has appeared on behalf of opposite party no.2 despite repeated calls. The record shows that notice on opposite party no.2 has been personally served but neither he nor any counsel on his behalf has appeared in the Court to oppose this application. This Court, therefore, deems it fit and proper to decide the case taking the assistance of learned A.G.A.

Heard learned counsel for applicants.

Submission of counsel for applicants is that this application has been kept pending only with regard to applicant nos.4, 5 and 6, who are brother-in-law (Dewar) namely Shoeb and two unmarried sister-in-laws (Nanad) namely Ruksar and Farheen. This application with regard to applicant nos.1, 2 and 3 stands disposed of as is apparent from perusal of order dated 5.7.2017, and though it has not been specifically mentioned in the order but it is clearly deducible from the same that the applicant nos.1, 2 and 3 were only granted direction to appear before the court below and get themselves bailed out. The application has been kept alive and is pending only with regard to applicant nos.4, 5 and 6, and therefore, the arguments are being pressed only with regard to them.

Submission of counsel is that this is a case which emanates from the matrimonial discord and it appears that out of a vengeful ire nurtured by wife and her parents a blanket false implication in this case practically of all the family members has been made. Counsel for applicants has tried to emphasize upon the high improbable elements involved in the prosecution story and it has been pointed out that according to the prosecution story at the time of incident when the victim wife was in her parental house, the accused persons which included her husband, mother-in-law, father-in-law, brother-in-law (devar) and two sister-in-laws, all are said to have barged into her house and started beating her. Thereafter, applicant no.4 brother-in-law (devar) denuded her and torn her clothes and committed rape upon her at the point of pistol. The sister-in-laws caught hold of her tightly and thereafter the poison was administered to her by mother-in-law. It is said that thereafter the accused persons took to their heels and then she was taken to the hopital. Counsel has specifically drawn the attention of the Court to the statement of Dr. Baburam, which has been annexed as Annexure-10 along with the application, in which he has specifically stated that at the time of medical examination the victim had not informed him about any such incident of rape having been committed with her. It has been also stated that there was no sign or symptom of any injury on her body. Counsel has also drawn attention of the Court to the statement of Dr. Barkha, which has been annexe as Annexure-11 along with application. It was emphasized by the counsel that though oral allegation of rape was made before her by the victim but this doctor has specifically stated that when she medically examined the victim, she did not find any kind of injury on her external or internal organs. Even the medical examination report did not confirm the incident of rape. Submission is that even otherwise it sounds highly improbable to suggest that in presence of his own father and two unmarried sisters, who are applicants no.5 and 6, the brother-in-law (dever) would have the temerity or audacity to commit rape upon the victim. Such kind of allegation revolts against the natural conduct of man and if not impossible is an allegation which is exceedingly improbable and is simply preposterous. Further submission is that even the story of the victim being caught hold by her two sister-in-laws appears to be highly unnatural and improbable. Contention is that in fact the entire prosecution story bristles with unnatural elements which militates against the natural manners or ways of happening in as much as the entire in-laws are so unlikely to think in terms of coming to the parental house of the wife and commit an incident of such kind as has been suggested. Counsel has placed reliance  on the Apex Court’s decision given in the case of Geeta Mehrotra Vs. State of U.P. and other, 2012(10) ADJ 464, in which also blanket implication of all family members has been commented upon with a note of caution, and it has been observed that in such matrimonial disputes the Courts are required to be very circumspect and judicially conscious while appreciating the evidence as the event of sweeping implication of all in-laws in order to wreak vengeance is becoming more and more common in the presently prevailing social setting. Submission is that in totality the circumstances are such which suggest the malice behind the prosecution and the submission of charge sheet is based on highly improbable material, and therefore, continuation of impugned proceeding against the applicants shall result in abuse of court’s process.

Heard learned A.G.A. and perused the record.

The law on the point of quashing of complaint or charge sheet is well settled. In the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 the Apex Court has recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. The observations made by the Apex Court in this case are as follows :

“The following categories can be stated by way of illustration wherein the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

After having perused the record and specifically the statements of two doctors, this Court finds substance in the submissions made by the counsel for applicants. The statements made by the doctors are unambiguous and it is not difficult to see that one of them has completely denied having been told by the victim about any happening of rape with her. The physical condition of the victim, as was found at that time of her medical examination by the doctors, appears inconsistent with the allegation of any assault like beating having been made upon her. She did not show any injury at that time according to the statements of doctors. The allegation of committing rape upon the victim by applicant no.4 in the presence of all other members of his family which included two unmarried sisters and mother is simply an unpalatable allegation and it is difficult to stomach the same.

In the considered opinion of this Court, it is not difficult to infer that the implication of the applicants no.4, 5 and 6 is inspired by malice and the allegations made against them are so high improbable which no man of ordinary prudence would like to believe, and as such, this case clearly falls under the category nos.(5) and (7) mentioned in Bhajan Lal’s case (supra) quoted hereinabove. Therefore, continuation of the impugned proceedings is likely to result in nothing except abuse of court’s process and the same deserves quashing.

The application is allowed and the entire proceeding of the present case so far as it relates to applicant nos.4, 5 and 6 stand quashed.

A copy of this order be certified to the lower court concerned forthwith.

Order Date :- 14.9.2018

M. Kumar

 

 

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